Opinion
CIVIL ACTION No. 00-2394-KHV
December 19, 2002
MEMORANDUM AND ORDER
Warren K. Pyles brings employment discrimination and retaliation claims against The Boeing Company ("Boeing") under Title VII of the Civil Rights Act of 1964 ("Title VII"), as amended, 42 U.S.C. § 2000e et seq., the Kansas Acts Against Discrimination, K.S.A. § 44-1001 et seq. and the Civil Rights Acts of 1866 and 1871, 42 U.S.C. § 1981 and 1983. On February 22, 2002, the Court granted partial summary judgment in favor of defendant on plaintiff's KAAD claims (Count 4) and his first discrimination charge under Title VII (parts of Counts 2 and 3). See Memorandum And Order (Doc. #85). In addition, the Court limited to acts which occurred from August 8, 1997 to October 7, 1998 plaintiff's Title VII claims on his second discrimination charge (parts of Counts 2 and 3). The Court also limited to acts which occurred from October 22, 1997 to October 7, 1998 plaintiff's Section 1981 claims (Count 1). See id. This matter comes before the Court on Defendant's Motion For Summary Judgment (Doc. #191) filed August 23, 2002 and Defendant's Motion To Supplement The Exhibits To Its Memorandum In Support Of Its Motion For Summary Judgment (Doc. #217) filed November 5, 2002. As a preliminary matter, the Court sustains defendant's motion to supplement its exhibits. For reasons stated below, the Court sustains in part defendant's motion for summary judgment.
I. Procedural History
On February 20, 1997, plaintiff filed a charge of race discrimination with the Kansas Human Rights Commission ("KHRC"). Plaintiff alleged that defendant had discriminated against him by (1) verbally harassing him; (2) denying him overtime; and (3) denying him transfers and promotions. On September 29, 1998, the Equal Employment Opportunity Commission ("EEOC") issued plaintiff a right to sue letter on these claims.
On November 2, 1998, plaintiff filed a second charge of race discrimination with the KHRC. In the second charge, plaintiff alleged that defendant had discriminated against him from November 1997 to October 8, 1998 and retaliated against him for opposing discrimination. Specifically, plaintiff alleged that defendant did not (1) promote him to supervisory positions or (2) give him back pay for a previous grievance. On August 31, 1998, the EEOC issued plaintiff a right to sue letter on his second charge of discrimination.
On June 4, 1998, certain employees of Boeing filed a class action race discrimination suit in the United States District Court For The Western District of Washington. See Williams v. The Boeing Co., No. C98 761C. Plaintiff was a class member in Williams, but he opted out of the class on April 13, 1999.
On August 31, 2000, plaintiff filed his claims in this suit.
II. Summary Judgment Standards
Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Rule 56(c), Fed.R.Civ.P.; accord Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Vitkus v. Beatrice Co., 11 F.3d 1535, 1538-39 (10th Cir. 1993). A factual dispute is "material" only if it "might affect the outcome of the suit under the governing law." Anderson, 477 U.S. at 248. A "genuine" factual dispute requires more than a mere scintilla of evidence. Id. at 252.
The moving party bears the initial burden of showing the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Hicks v. City of Watonga, Okla., 942 F.2d 737, 743 (10th Cir. 1991). Once the moving party meets its burden, the burden shifts to the nonmoving party to demonstrate that genuine issues remain for trial "as to those dispositive matters for which it carries the burden of proof." Applied Genetics Int'l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir. 1990); see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986); Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir. 1991). The nonmoving party may not rest on its pleadings but must set forth specific facts. Applied Genetics, 912 F.2d at 1241.
The Court must view the record in a light most favorable to the party opposing the motion for summary judgment. Deepwater Invs., Ltd. v. Jackson Hole Ski Corp., 938 F.2d 1105, 1110 (10th Cir. 1991). Summary judgment may be granted if the non-moving party's evidence is merely colorable or is not significantly probative. Anderson, 477 U.S. at 250-51. "In a response to a motion for summary judgment, a party cannot rely on ignorance of facts, on speculation, or on suspicion, and may not escape summary judgment in the mere hope that something will turn up at trial."Conaway v. Smith, 853 F.2d 789, 794 (10th Cir. 1988). Essentially, the inquiry is "whether the evidence presents a sufficient disagreement to require submission to the jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson, 477 U.S. at 251-52.
III. Facts
The following facts are either uncontroverted or construed in a light most favorable to plaintiff:
In response to many of defendant's factual assertions, plaintiff states that a fact is uncontroverted but goes on to state additional facts in the same paragraph. See Memorandum In Opposition To Defendant's Motion For Summary Judgment ("Plaintiff's Memorandum") (Doc. #215) filed October 30, 2002 at 3-21. D. Kan. Rule 56.1(b)(2) requires that the party opposing summary judgment set forth additional facts in separately numbered paragraphs, supported by references to the record, in the manner set forth by D. Kan. Rule 56.1(a). Plaintiff does not include record citations for many of his fact assertions. See, e.g., id. ¶ 4-6, 8, 66, 69. In addition, some of his record citations do not support his assertions. See, e.g., id. ¶¶ 4, 22. The Court ignores any assertions which plaintiff has not properly supported. Finally, in many instances plaintiff cites his own affidavit, which consists of eleven pages of rambling, unorganized statements without paragraph or sentence breaks.See Affidavit Of Warren K. Pyles (Doc. #216) filed October 30, 2002. Plaintiff does not refer with particularity to which portion of the affidavit upon which he relies. The Court will consider only those factual assertions for which it can easily discern support in plaintiff's affidavit.
Defendant manufactures commercial airplanes, military aircraft, and missile, space and communications systems. It operates an aircraft engineering, fabrication and assembly center in Wichita, Kansas.
Plaintiff is a 46 year-old African American man. In 1987, he began working at the Wichita facility as a grade 3 hand router operator. He remained in this position for about ten years. On January 27, 1997, plaintiff transferred to materials processor requirements facilitator, also a grade 3 position.
A. FLMSP Phase I
In March 1996, defendant implemented Phase I of the First Level Management Selection Process ("FLMSP"), a company-wide procedure for selecting first-level managers. Under Phase I, defendant posted management job openings for two weeks. Twice a week, the assessment center conducted orientation sessions regarding open positions. If an employee wanted a particular management position, he or she had to attend an orientation session and complete a self-nomination form. The form contained a serial number to keep secret the identity of the applicant. The applicant also had to complete a record regarding his or her experiences and abilities with respect to the job description. Under Phase I, three assessors — who were usually second-level managers from the hiring organization — conducted a structured interview of each candidate and scored the candidate responses. Around the time of the structured interviews, defendant gave the candidate experience records to the hiring organization for its second-level managers to also score. The hiring organization scored the experience records anonymously, but it knew the identity of the candidates in the structured interviews.
Defendant used Phase I of the FLMSP from March 1996 to June 1998.
In addition to the experience record and structured interview, which were job-specific, first-level manager candidates had to complete three generic assessments: (1) an anonymous written exercise, scored by a standing team of four managers; (2) a work sample video, which was a computer-scored written test based on several videotaped hypothetical situations; and (3) a coaching exercise which involved employee problem role playing, scored by human resource employees. A candidate could use the same generic assessment scores for all first-level management positions for which he or she applied. The generic assessment scores remained valid for three years, and an employee could not retake the generic assessments for a period of six months.
The assessment center scanned into a computer the score sheets from the generic assessments, experience records and structured interviews. The computer then generated an overall score for each candidate known as the KSAO score. Based on the KSAO scores, the computer ranked the candidates into bands with the highest scores falling in the first band. The assessment center then generated a list of candidates, categorized by band level, which it gave to the hiring organization. Absent limited circumstances, Phase I required the hiring organization to offer the position to a candidate in the highest band. If the candidates in the highest band were no longer available (i.e., they had already accepted other positions), the hiring organization could move to candidates in the next lower band. if the hiring organization wanted to pass over available candidates in a higher band, it had to provide substantial justification for its action.
KSAO stands for knowledge, skills, abilities and other characteristics.
B. Materials Manager Application
On April 5, 1997, plaintiff completed a self-nomination form and experience record for a first-level manager position in materials (requisition no. G96459). Thereafter, plaintiff completed the generic assessment tests. See Plaintiff's Affidavit at 5-6. Defendant chose Kimberly Clift for the position. Plaintiff learned of the decision on May 30, 1997. Plaintiff claims that defendant favored Clift because her husband is a second-level manager and may have influenced the decision-making process. Plaintiff does not know Clift's experience, qualifications or FLMSP assessment scores.
The parties dispute whether plaintiff received a structured interview for the position. For purposes of summary judgment, the Court construes this fact in favor of plaintiff. As a practical matter, however, it is not material to the Court's decision herein.
Defendant does not state why it chose Clift.
C. Maintenance Oiler Position
On July 7, 1997, defendant promoted plaintiff to maintenance oiler, a grade 4 position. In this position, plaintiff's supervisor moved him to various physical locations without his consent. Defendant contends that it regularly moved new second shift maintenance oilers, including plaintiff, so that they would learn and become familiar with all the different areas in the facility. Only a few maintenance oilers worked the second shift, and they were responsible for maintaining lubrication on all machines at the Wichita campus. Defendant maintains that it did not move the experienced oilers because they had already rotated through the different areas and knew all facets of the job.
The parties do not identify who supervised plaintiff in the maintenance oiler position.
The parties agree that defendant's managers have discretion to move employees from one area to another within the same job.
Plaintiff believes that his supervisor moved him because of his race. Defendant's managers also moved white employees, but plaintiff saw them move black employees, including himself, more often. Plaintiff complains that his supervisor did not move Mike Dozier, a white employee who held the same position as plaintiff. Plaintiff admits that Dozier was not new in the position, but he states that Dozier had less experience and seniority than plaintiff. Plaintiff contends that plaintiff did not need to change physical locations because he had worked on all the shifts and already knew all facets of the job. Plaintiff testified that the change in physical location "was just an inconvenience here. I had to go from all these different lots. I never knew anybody else that had to do that." Plaintiff's Depo. at 599 11.2-4. The physical location moves were not demotions and did not decrease plaintiffs grade or pay.
Plaintiff provides no evidence which compares his job experience and seniority to that of Dozier.
Plaintiff complains that defendant favored certain employees with respect to overtime. Specifically, plaintiff contends that defendant did not require Mike Dozier, a white maintenance oiler, to work as much overtime as plaintiff. Plaintiff complains that at various times defendant either gave him too much overtime or not enough overtime, and that defendant did not let him choose whether he wanted to work overtime as it did other employees. In trying to explain how the favoritism worked, plaintiff testified: "I don't know the connection of all of them, but word has it different things kind of click between different people. I mean, you got your ones you hear about, they're in the same church, they're in the same club together, they're doing this together, so they get favored for whatever reason, and I couldn't tell you why they are favored." Plaintiff's Depo. at 611 11.11-18.
Plaintiff also maintains that Dozier was the only white maintenance oiler on the second shift see Plaintiff's Memorandum ¶ 51, but his record citations do not support the assertion. See Plaintiff's Affidavit at 4; Plaintiff's Depo. at 611-12.
D. Facilities Supervisor Application
On June 26, 1997, defendant announced an open supervisor position in facilities, with a closing date of July 11, 1997 (requisition no. H08719). On June 28, 1997, plaintiff completed a self-nomination form for the position. Plaintiff also completed an experience record and participated in a structured interview. He did not re-take the general assessment tests.
On June 30, Brian Knowles completed a self-nomination form for the facilities supervisor position. On July 7, 1997, Floyd "Al" Hubbard, an African American, completed a self-nomination form for the facilities supervisor position. After the candidates completed the selection process, the assessment center compiled a band list. Only one candidate, Bobby Brewer, qualified for the first band. Defendant did not select Brewer, however, because it had previously reduced him from management for cause. Four candidates, including Knowles and Hubbard, scored in band 2. Three candidates scored in band 3. Three candidates, including plaintiff, scored in band 4. One candidate scored in band 5.
Plaintiff contends that defendant has fabricated the date of Knowles' self-nomination form. See Plaintiff's Memorandum ¶ 70. In support of his contention, plaintiff states that Linda Orht told him that he was the only employee who had applied for the job before the July 11 closing date. See id. Plaintiff does not identify Orht or state why the Court should admit her hearsay statement. Plaintiff also argues that a memorandum to Brian Knowles dated October 2, 1997 suggests that he had recently submitted his self nomination form, but plaintiff does not identify the memorandum in the record. Finally, plaintiff argues that Knowles' general assessment scoring sheets are dated in October 1997. See Affidavit of Danny Joe Northrup ("Northrup Affidavit"), Exhibits C, D and E. Plaintiff carried over his assessment scores from April 1997 and the structured interview scoring sheets for both plaintiff and Knowles are dated October 22, 1997. See Northrup Affidavit, Exhibit F; Affidavit of Terry W. Statton, Exhibit F. Even construed in a light most favorable to plaintiff, the record does not contain a genuine issue of fact regarding the date of Knowles' self-nomination form.
Plaintiff also attempts to create a fact issue regarding the date of Hubbard's self-nomination form. The Court rejects the contention for substantially the same reasons stated above regarding Knowles' self nomination form.
The record does not reveal the total number of candidates who applied for the position.
On November 7, 1997, Thomas Turkle offered the position to Knowles, who had worked in the position temporarily for about a month. Based on Knowles performance, Turkle believed that he was the most qualified for the position. Knowles worked as facilities supervisor for about a month and moved to another job.
The record does not reveal Turkle's position.
Plaintiff argues that Turkle should not have picked Knowles' because his attendance was bad and he was under threat of termination.See Plaintiff's Memorandum ¶ 77. In support of this contention, plaintiff cites his own affidavit, which does not show that he has first-hand knowledge of this fact. See Fed.R.Civ.P. 56(e) (affidavits "shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein").
The record does not identify the new job or explain why Knowles left the facilities supervisor position. Plaintiff argues that Knowles never wanted the facilities supervisor position, citing his own affidavit testimony that Knowles told him so. See Plaintiff's Affidavit at 6. Plaintiff provides no basis for admitting the hearsay statement into evidence.
After Knowles left, Turkle temporarily promoted Carla Greene to facilities supervisor. Turkle believed that Greene was the most qualified for the position because she had a master's degree and management experience. Greene had not applied for the position and her name was not on the band list.
Plaintiff cites his own affidavit testimony that Greene's promotion was permanent. See Plaintiff's Memorandum ¶ 81; Plaintiff's Affidavit at 8-9. Plaintiff further contends that Greene left the job because Al Hubbard successfully argued that Boeing never should have offered her the job. See id. Plaintiff provides no basis to infer that he has personal knowledge of these facts.
On December 15, 1997, defendant notified plaintiff that it had selected another person for the facilities manager position.
On February 12, 1998, Turkle selected Hubbard to replace Greene as facilities supervisor. Hubbard had previously applied for the position and scored in band 2. Turkle believed that Hubbard was the most qualified candidate on the band list.
Plaintiff argues that he was more qualified than Hubbard because plaintiff was more senior and had more management and construction experience, as well as a constructor's license. Plaintiff does not explain why these qualities made him more qualified for the position, nor does he provide information regarding Hubbard's qualifications. Plaintiff does not dispute that Hubbard scored in band 2 and plaintiff scored in band 4 under the FLMSP. Plaintiff alleges that the band list was "rigged" but he provides no record support. See Plaintiff's Memorandum ¶ 64.
Plaintiff believes that defendant selected Hubbard based on a race quota system. Plaintiff testified that the decision was discriminatory "[b]y not hiring a black in it when . . . we had a black on first shift. So you got a black there, and . . . at the time we had another black in another shop over there and then we had another black over in the garage, and . . . at the time you only had room for like four or five supervisors. That's like getting heavy on blacks the way I see it as Boeing looking at it." Plaintiff's Depo. at 531 11.16-24.
E. Delayed Promotion To Millwright B
On October 29, 1997, Boeing offered plaintiff a promotion to millwright B, a grade 6 job covered by and subject to the collective bargaining agreement between Boeing and the International Association of Machinists and Aerospace Workers AFL/CIO (the "collective bargaining agreement"). Plaintiff accepted the offer, but he could not start the new job until March 30, 1998. Plaintiff's manager in the maintenance oiler job did not want to release him until he hired a replacement. Only a few maintenance oilers worked the second shift and their work was critical to maintaining defendant's machinery. Plaintiff contends that defendant had funds available to hire a replacement at any time, but intentionally kept him waiting to move to millwright B.
On March 2, 1998, a new maintenance oiler reported to work to replace plaintiff. Plaintiff left for vacation that same day. He was told to report to the millwright job upon his return to work.
Defendant commonly delayed a promotion in order to find a replacement for the promoted employee. It had delayed a promotion for a white employee, Ken Myers, the maintenance oiler whom plaintiff replaced. Defendant offered Myers a promotion but did not release him until it found a new second shift maintenance oiler (plaintiff) to backfill the position.
Plaintiff contends that Myers' promotion was delayed for only a month, and that plaintiff was delayed four months and had to file a grievance to get his back pay. Plaintiff's record citations, however, do not support his contentions. See Plaintiff's Memorandum ¶ 19.
F. Back Pay Grievance
Plaintiff filed a grievance to receive back pay at grade 6 beginning November 19, 1997. Defendant and plaintiff settled the grievance and plaintiff received back pay beginning January 2, 1998. Plaintiff is not satisfied with the settlement. Plaintiff believes that under defendant's policy, a promoted employee was entitled to increased pay no later than 30 days after defendant offered a promotion, regardless when the employee began to perform the higher grade work. The collective bargaining agreement contains no such provision. Defendant maintains that its policy required a supervisor to release a promoted employee to his or her new job within 30 working days of the offer but that defendant made exceptions when management needed additional time to fill the position. Defendant denies that its policy was to increase the promoted employee's pay if he or she was not released to the new job within 30 days.
The record does not reflect when plaintiff filed the grievance.
G. Terry Rader
In December 1997, defendant offered Terry Rader a promotion to millwright B. Rader had been working in maintenance parts B on the first shift under the supervision of Ronald Kinsler. Rader did not begin working in millwright B until February 1998 because Kinsler had retained him to train his replacement. On January 2, 1998, however, defendant began paying Rader at grade 6, even though he was not yet working in millwright B. Without Rader's knowledge, Kinsler had arranged for Rader to receive higher pay during the time that he trained his replacement. Kinsler had a general practice of giving a promoted employee his or her promotion pay during the time that he or she remained to train a replacement employee.
Before their promotions, plaintiff and Rader worked under different lines of management. Plaintiff worked as maintenance oiler in Organization 6228. Rader worked as maintenance parts B in Organization 6140. At the time, Kinsler did not know about plaintiff's situation.
H. Millwright B
When plaintiff began working in millwright B, he felt like he "was working in . . . kind of a hostile environment . . . in a sense of people treating [him] bad because [he] wasn't in the union. [Plaintiff came] in a hundred percent union shop. So people frowned on [him] for that." Plaintiff's Depo. at 390 11.13-17. Plaintiff subsequently joined the union.
Plaintiff contends that he also felt that he was working in a hostile working environment because of his race, but his record cite does not support the assertion. See Plaintiff's Memorandum ¶ 21.
Al Hubbard supervised plaintiff when he first transferred to the millwright position. About a week or two later, plaintiff transferred to the first shift. Plaintiff contends that he chose to work the first shift so that he would have a black supervisor who promised to watch his back and get him up to speed faster so that he could return to the second shift. Defendant asserts that it typically assigned grade 6 millwrights to the first shift to be trained by grade 8 millwrights. Plaintiff agrees that defendant assigned all grade 6 millwrights to the first shift and that defendant would have to promote him to grade 8 before he could move to the second shift. From April 1998 to December 1999, Leon McCraw, an African American, supervised plaintiff on the first shift. From July 25, 1998 to October 5, 1998, McCraw took medical leave. Dexter Spangler covered McCraw's duties for about a month. During this time, Spangler also managed his own crew in the facilities department. During the remainder of McCraw's absence, Mike Apel filled in. Apel "was the main one filling in" during McCraw's absence. Plaintiff's Depo. at 127 1.9. From April 6, 1998 to March 2001, Bruce Price, an African American, worked as plaintiff's second-level supervisor.
Plaintiff testified that he was told that Carla Greene would supervise him, but he never met her. See Plaintiff's Depo. at 123 11.2-5.
Plaintiff prefers to work the second shift. Until his millwright promotion, plaintiff worked the second shift most of the time.
Under the collective bargaining agreement, defendant has the exclusive right to assign employees to any shift. Subject to that right, senior employees with a shift preference on file have priority over other employees and new hires for open jobs titles in their organization. Senior employees, however, cannot displace a less senior employee from his or her job and shift. An employee can only change shifts if a position is open on the desired shift.
Defendant temporarily promoted Apel, a salaried non-management level employee, to manage McCraw's crew.
McCraw followed a formal rotation schedule to offer overtime on a fair and equal basis. Spangler, however, did not follow the same schedule. Spangler did not offer overtime work to plaintiff or the two other black employees, Robert Woods and Jiles "Johnny" Burkhalter, despite their seniority and experience. In addition, Spangler did not ask plaintiff to work on Air Force One. Plaintiff was one of two employees in the shop who had security clearance to work on Air Force One. Instead of asking plaintiff, Spangler violated security rules and asked white employees who did not have clearance. Plaintiff testified that Spangler treated him rudely and unpleasantly. See Plaintiff's Depo. at 615 11.14. Specifically, plaintiff stated that Spangler's conduct demonstrated that Spangler based his overtime decisions on race: "[H]e don't [sic] have any reason to dislike me. He don't know me from nobody and he's depending on me to do a job, but he'll turn his back on me. And, I mean, he speak [sic] if he got to, but other than that, he's like he wants to consider like I'm not there and look over me, and that's rude. That's — those are racial signs." Id. at 617 11.14-21.
Defendant asserts that overtime sometimes came in at the last minute and was offered to whomever was still around and available. Plaintiff counters that in every case, he was the last employee to leave and should have been offered overtime. Plaintiff states that defendant offered him overtime only a few times, after he had complained about Spangler's actions. See Plaintiff's Affidavit at 8.
From July 24, 1998 (when McCraw's absence began) to October 7, 1998 (the cutoff date for this lawsuit), including during the month that Spangler supervised plaintiff, plaintiff worked the third highest amount of overtime of ten millwright B workers. The two employees who worked more overtime are white. They have less seniority and no security clearance.
I. Failure To Promote In Millwright Position
Plaintiff continues to work as a millwright B. The millwright job family consists of three grades:
Job Title Job Code Grade __________________________________________ _____
Millwright B 805-06 6 Millwright A 805-08 8 Carpenter Millwright Specialist 859-09 9
Defendant maintains approximately equal numbers of millwright As and millwright Bs.
The record does not reflect the proportion of employees working as carpenter millwright specialists.
The collective bargaining agreement governs all of the millwright jobs, including promotion procedures. When defendant has an open job title, the contract requires it to select employees in the following order: (1) category A employees, based on seniority; (2) qualified category B employees, based on seniority; and (3) employees from any other source. Category A includes any employees who were previously assigned to the open job title but lost their position due to a reduction in force. In order to qualify for category B, an employee must (1) be currently assigned to and have worked in the next lower step job for the past 90 days; and (2) have filed an application for transfer to the open job title and designated shift.
Plaintiff contends that defendant should have promoted him to millwright A or carpenter millwright specialist. On June 28, 1998, plaintiff had worked as millwright B for 90 days and became eligible for a category B promotion to the millwright A job. On the same date, plaintiff filed a request to transfer to millwright A. No millwright A jobs became open or were filled between June 28, 1998 and October 7, 1998, the cutoff date for this suit.
Plaintiff had never held either job and therefore did not hold category A rights to either position.
Because plaintiff never held a millwright A job, he never became an eligible category B employee for the carpenter millwright specialist position. Regardless, no carpenter millwright specialist jobs became open or were filled between June 28, 1998 and October 7, 1998.
J. FLMSP Phase II
In June 1998, defendant implemented Phase II of the FLMSP. Under Phase II, employees who sought first-level management positions had to complete four generic assessments: (1) the coaching exercise, scored by outside assessors; (2) the written exercises, scored by a team of four managers; (3) the work sample video, scored by computer; and (4) the structured interview. Under Phase II, outside assessors scored the structured interview, which was no longer specific to the open position. Defendant designed the generic assessments to measure eight management dimensions: positive work orientation, teamwork/delegation, problem solving, planning/time management, working together, interpersonal skills, Boeing knowledge and basic abilities. In order to apply for a first-level management position, an employee had to achieve a certain minimum score in three of the dimensions and a sufficient total score across all of the dimensions. If an employee did not achieve the minimum score, he or she was not eligible to apply for management jobs.
Plaintiff contends that defendant changed the FLMSP because under Phase I, managers could easily place favorites into management positions. See Plaintiff's Memorandum ¶ 86.
In August 1998, defendant informed plaintiff that he did not meet the established minimum score for Phase II. Plaintiff did not retake the FLMSP assessments. By August 1998, plaintiff was so soured by the selection process that he no longer sought a management position.
K. Harassment
Plaintiff contends that defendant harassed him by denying or delaying his job applications and promotions and by denying him overtime and shift changes. Defendant has an anti-harassment policy under which employees can make internal complaints through several channels within defendant. Plaintiff is aware of the policy but did not make a complaint after February 1996. Plaintiff contends that he did not do so because he expected the Williams class action suit to resolve his claims.
L. Retaliation
Plaintiff contends that Spangler retaliated against him in one instance by not asking him to work overtime until the end of his shift. Plaintiff alleges that "Spangler had plenty of time to call plaintiff about the job, but didn't want to tell him and purposely waited until plaintiff was ready to punch out, then told him about the overtime work on Air Force One. Spangler did not want to give this job to plaintiff and showed it in his conduct." Plaintiff's Memorandum ¶ 93.
The record does not reflect the date of this incident. The parties dispute whether Spangler knew of plaintiff's involvement in the Williams class action.
IV. Analysis
Plaintiff claims that defendant discriminated against him by (1) not promoting him to management positions; (2) moving him to different physical locations when he worked as maintenance oiler; (3) delaying his promotion to millwright B and corresponding pay raise; (4) denying him a shift change in the millwright position; (5) denying him promotions within the millwright job family; and (6) denying him overtime work in millwright B. Plaintiff also claims that defendant harassed him and retaliated against him because of his race. Defendant contends that it is entitled to summary judgment because: (1) plaintiff cannot establish a prima facie case or pretext of disparate treatment; (2) plaintiff does not sufficiently allege racial harassment; and (3) plaintiff cannot establish retaliation.
Defendant also asserts that plaintiff's second EEOC charge limits his Title VII claims to failure to promote and failure to provide back pay between November 1, 1997 and October 7, 1998. Plaintiff agrees, based on the Court's previous rulings.
A. Disparate Treatment
The burden-shifting framework which the Supreme Court set forth inMcDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973), applies equally to plaintiff's claims under Title VII and Section 1981. See Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220, 1225 (10th Cir. 2000). Under this approach, plaintiff initially bears the burden of production to establish a prima facie case of discrimination. See McDonnell Douglas, 411 U.S. at 802. If plaintiff establishes a prima facie case, the burden shifts to defendant to articulate a facially nondiscriminatory reason for its actions. See Reynolds v. Sch. Dist. No. 1, 69 F.3d 1523, 1533 (10th Cir. 1995). If defendant articulates a legitimate nondiscriminatory reason, the burden shifts to plaintiff to present evidence sufficient on which a reasonable jury might conclude that defendants' proffered reason is pretextual, that is, "unworthy of belief"Beaird v. Seagate Tech., Inc., 145 F.3d 1159, 1165 (10th Cir. 1998) (quoting Randle v. City of Aurora, 69 F.3d 441, 451 (10th Cir. 1995)).
1. Failure To Promote
Plaintiff claims that defendant passed over him on account of race with respect to the materials manager position filled by Kim Cleft and the facilities manager position filled by Brian Knowles, Carla Greene and Al Hubbard. As an initial matter, plaintiff cannot recover on the materials manager promotion because it occurred during the Spring of 1997, before the applicable time period of this suit. In order to establish a prima facie case with respect to the facilities manager promotion, plaintiff must show that he (1) belongs to a minority group; (2) was qualified for the promotion; (3) was not promoted; and (4) that the position remained open or was filled with a non-minority. See Amro v. Boeing Co., 232 F.3d 790, 796 (10th Cir. 2000). Defendant argues that plaintiff has not shown that he was qualified for the position. In doing so, defendant asserts that plaintiff scored in a lower band than the successful candidates. Plaintiff's burden at the prima facie stage is light and he may rely on his own testimony to establish that he was qualified for the promotion. See Kenworthy v. Conoco, Inc., 979 F.2d 1462, 1470 (10th Cir. 1992). For purposes of summary judgment, the Court accepts plaintiff's contention that he was qualified for the facilities manager position.
Defendant states that it selected the most qualified candidates for the position. Because defendant states a legitimate nondiscriminatory reason for its actions, the burden shifts to plaintiff to show evidence of pretext. Evidence of pretext may take a variety of forms. See Aramburu v. Boeing, 112 F.3d 1398, 1411 n. 10 (10th Cir. 1997). Plaintiff can show pretext by pointing to "such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence." Morgan v. Hilti, Inc., 108 F.3d 1319, 1323 (10th Cir. 1997) (quotations omitted). Typically, a plaintiff demonstrates pretext with evidence that (1) defendant's stated reason for the adverse action was false; (2) defendant acted contrary to written company policy prescribing the action to be taken by the defendant under the circumstances; or (3) defendant acted contrary to an unwritten policy or contrary to company practice when making the adverse decision. See Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220, 1230 (10th Cir. 2000).
The record establishes that Knowles and Hubbard scored in band 2 under the FLMSP, while plaintiff scored in band 4. Plaintiff provides no evidence that defendant acted contrary to its policies or that defendant's stated reason is otherwise false. Thus plaintiff has not shown that defendant's stated reason for the Knowles and Hubbard promotions is pretextual.
With respect to Greene, plaintiff argues that defendant did not follow its policy because she had not applied for the job under the FLMSP. Defendant asserts that it was not required to follow the FLMSP procedure because it promoted Greene temporarily. Defendant presents no evidence, however, regarding its policy for temporary promotions. In light of the fact that Greene had not applied for the position under the FLMSP, the record supports an inference that defendant's proffered reason is pretextual. Defendant is not entitled to summary judgment on plaintiff's claim regarding the facilities manager position filled by Greene.
Defendant contends that Greene's promotion was temporary, but it has not established that the FLMSP did not apply to temporary promotions.
It appears that Greene's promotion occurred in December 1997. The Court therefore does not reach defendant's argument that the pretrial order does not include claims for failure to promote in 1998.
2. Movement Within Maintenance Oiler Position
Plaintiff asserts that defendant discriminated against him because it moved him around to different physical locations when he worked the maintenance oiler job. Plaintiff may demonstrate a prima facie case by showing that (1) he belongs to a protected class; (2) he suffered an adverse employment action; and (3) the adverse employment action occurred under circumstances which give rise to an inference of discrimination.See Hysten v. Burlington N. Santa Fe R.R. Co., 296 F.3d 1177, 1181 (10th Cir. 2002). Defendant maintains that plaintiff has not alleged that he suffered an adverse employment action. The Court agrees. Although the Tenth Circuit liberally defines adverse employment action, it "does not extend to a mere inconvenience or an alteration of job responsibilities."Sanchez v. Denver Pub. Schs., 164 F.3d 527, 532 (10th Cir. 1998) (citations and quotations omitted). In plaintiff's own words, the movement to different locations was an inconvenience. On this record, plaintiff has not established a prima facie case based on changes in physical location with respect to the maintenance oiler position.
Defendant contends that plaintiff did not assert this claim in the pretrial order.
3. Delayed Promotion To Millwright B And Corresponding Pay Raise
Plaintiff asserts that defendant discriminated against him by delaying his promotion to millwright B. In order to establish a prima facie case, plaintiff must show that (1) he belongs to a protected class; (2) he suffered an adverse employment action; and (3) the adverse employment action occurred under circumstances which give rise to an inference of discrimination. See Hysten, 296 F.3d 1177 at 1181. Citing Amro v. Boeing Co., 232 F.3d 790, 797 (10th Cir. 2000), defendant argues that the delay in plaintiff's promotion does not constitute an adverse employment action. In Amro, the Tenth Circuit found that plaintiff had not shown that a delay in a lateral transfer constituted an adverse employment action. See id. Here, plaintiff claims that defendant delayed his promotion and corresponding pay raise. Had plaintiff received full pay retroactively, his claim would fail. See Benningfield v. City of Houston, 157 F.3d 369, 378 (5th Cir. 1998) (delayed promotion not adverse employment action where employee received retroactive pay and seniority). On this record, however, plaintiff has sufficiently alleged an adverse employment action.
Defendant asserts that plaintiff cannot show that it treated a similarly situated employee more favorably. Specifically, defendant contends that plaintiff and Terry Rader worked under different managers and therefore were not similarly situated. Defendant further argues that it ended up paying plaintiff the higher grade pay retroactively to the same day that Rader received his pay. In EEOC v. Horizon/CMS Healthcare Corp., 220 F.3d 1184, 1195 n. 6 (10th Cir. 2000), the Tenth Circuit clarified that to demonstrate a prima facie case, plaintiff is not necessarily required to compare himself to similarly situated co-workers. Rather, plaintiff must show only that the adverse employment action occurred under circumstances which give rise to an inference of discrimination. Here, plaintiff has done so. Defendant admits that its policy was to release an employee to a new position within 30 days, unless the manager needed additional time to fill the position. While the policy did not address pay, at least one manager had the practice of raising the promoted employee's pay during the time that he or she remained in her old position. Rader automatically received such treatment, while plaintiff had to file a grievance to get it. Moreover, while defendant eventually paid plaintiff retroactively to January 2, 1998 — the same date that Rader received his pay raise — defendant does not address the fact that plaintiff had received his promotion offer on October 27, 1997, well over a month before Rader received his in December 1997. On these facts, plaintiff has created an inference of discrimination sufficient to satisfy a prima facie case.
Defendant maintains that it did not release plaintiff to the millwright job because it needed to find a replacement to fill his maintenance oiler position. Defendant does not explain, however, why it did not increase plaintiff's pay within 30 days of his promotion offer, like it did with Rader. Because defendant has not articulated a legitimate business reason for the differential pay treatment, it is not entitled to summary judgment on this claim.
Defendant asserts that plaintiff and Rader worked under different managers. Defendant presents no evidence, however, to support any inference that the managers had authority to make such decisions on an ad hoc basis.
4. Denial of Shift Change And Millwright Promotions
Plaintiff claims that defendant should have granted him a shift change by promoting him to millwright A. Plaintiff also claims that defendant discriminated against him by not promoting him to millwright A or millwright specialist. Plaintiff admits, however, that no millwright A jobs became open or were filled between June 28, 1998 (the date on which plaintiff became eligible for such promotion) and October 7, 1998 (the cutoff date for this suit). See Defendant's Memorandum ¶¶ 46 and 47; Plaintiff's Memorandum ¶¶ 46 and 47. Plaintiff also admits that because he never held the millwright A job, he was not eligible for a promotion to the millwright specialist job. See Defendant's Memorandum ¶ 45; Plaintiff's Memorandum ¶ 45. Defendant is entitled to summary judgment on this claim.
In the argument section of his response brief, plaintiff states: "there were millwright A positions open which plaintiff's black supervisor, Leon McCraw, tried to promote him to, but which were denied by the white manager, Gary Ruken." Plaintiff's Memorandum at 25. Plaintiff did not make this contention in his factual statement and he provides no record support for it.
5. Overtime
Plaintiff alleges that defendant denied him overtime work in the millwright position. Defendant argues that plaintiff cannot establish a prima facie case because he cannot show that it treated similarly situated employees more favorably. As discussed supra, plaintiff must show only that the adverse employment action occurred under circumstances which give rise to an inference of discrimination. During the relevant time period, two white employees with less seniority worked more overtime than plaintiff. In addition, Spangler chose two white employees to work overtime on Air Force One when plaintiff had security clearance to do so and the white employees did not. Construed in a light most favorable to plaintiff, the record supports an inference of discrimination with respect to overtime work in the millwright position.
Defendant asserts that the pretrial order does not include overtime claims for 1998. In the pretrial order, plaintiff sets forth various discriminatory acts, designated by year from 1987 to 1997. See Pretrial Order (Doc. #180) at 3-6. Plaintiff does not set forth a schedule of acts for 1998; he states generally, however, that he experienced discriminatory acts, including denial of overtime, during his tenure at defendant, which has lasted from 1987 to the present. See id. at 2-6. Construed broadly in favor of plaintiff, the pretrial order asserts a claim for denial of overtime in 1998.
Defendant also claims that plaintiff failed to exhaust administrative remedies with respect to this claim. This argument applies only to plaintiff's Title VII claim, and plaintiff does not argue otherwise. The Court therefore grants summary judgment in favor of defendant on plaintiff's Title VII claim for denial of overtime.
For its legitimate business reason, defendant states that McCraw and Spangler followed a formal rotation schedule for overtime. Plaintiff agrees that McCraw did so, see Plaintiff's Memorandum ¶ 53, and he offers no evidence that defendant's explanation regarding McCraw is pretextual. McCraw supervised plaintiff from April 1998 to July 25, 1998. Defendant is therefore entitled to summary judgment on plaintiff's claim during this time frame. With respect to the remaining time (from July 26, 1998 to October 7, 1998), defendant states that Spangler followed a formal rotation schedule. The parties dispute this fact, however, and for summary judgment purposes the Court must construe it in favor of plaintiff. The record therefore supports an inference that defendant's stated reason for Spangler's conduct is pretextual. Moreover, Spangler supervised plaintiff for only one month, from July 26, 1998 to approximately August 26, 1998. Defendant provides no explanation for its treatment of plaintiff from August 26, 1998 to October 7, 1998. The Court overrules defendant's motion with respect to plaintiff's Section 1981 claim regarding denial of overtime from July 26, 1998 to October 7, 1998.
6. Racial Harassment
Defendant contends that plaintiff has not sufficiently alleged harassment. In order to survive summary judgment, plaintiff must allege facts which support the inference of a racially abusive work environment, see Meritor Sav. Bank v. Vinson, 477 U.S. 57, 67 (1986), and support a basis for liability. See Hicks v. Gates Rubber Co., 833 F.2d 1406, 1417-18 (10th Cir. 1987). Specifically, plaintiff must show that under the totality of circumstances (1) the harassment was pervasive or severe enough to alter the terms, conditions or privileges of employment; and (2) the harassment was racial or stemmed from racial animus. See Meritor, 477 U.S. at 67. In evaluating the first prong, the Court looks to all the circumstances including "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Trujillo v. Univ. of Colo. Health Sciences Ctr., 157 F.3d 1211, 1214 (10th Cir. 1998) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993)). General harassment is not actionable. Bolden v. PRC Inc., 43 F.3d 545, 551 (10th Cir. 1994). Plaintiff must "show more than a few isolated incidents of racial enmity." Id. (quotation and citation omitted). "Instead of sporadic racial slurs, there must be a steady barrage of opprobrious racial comments." Id.
The Court does not reach defendant's arguments that plaintiff's harassment claim is barred because he did not complain of harassment pursuant to defendant's policy and because he did not exhaust administrative remedies.
Plaintiff claims that defendant created a hostile work environment by denying "promotions, shift change, and spontaneously moving plaintiff all over the place, and just generally making the job or position harder for plaintiff than his white co-workers." Plaintiff's Response at 27. Construed in a light most favorable to plaintiff, the evidence falls short of establishing a racially hostile work environment. While plaintiff perceives that defendant treated him unfairly, he has not shown that defendant's actions were pervasive or severe enough to alter the terms, conditions or privileges of his employment. Moreover, plaintiff has not shown that the alleged conduct was based on race. Defendant is entitled to summary judgment on plaintiff's harassment claim.
7. Retaliation
Plaintiff contends that his supervisors retaliated against him because he was involved in the Williams class action. To establish a prima facie case of retaliation, plaintiff must show that (1) he engaged in protected opposition to discrimination; (2) defendant subjected him to adverse employment action; and (3) a causal connection exists between the adverse employment action and his protected activity. See Sanchez v. Denver Pub. Schs., 164 F.3d 527, 533 (10th Cir. 1998). Defendant argues that plaintiff cannot establish an adverse employment action or a causal connection. In response, plaintiff argues generally that his supervisors were aware of the class action and harassed him because of it. See Plaintiff's Memorandum at 28. More specifically, plaintiff asserts that "Dexter Spangler was one of the supervisors who was aware of the litigation and plaintiff's involvement in it and harassed plaintiff because of it. The time period involved was 1997 through 1998, and the harassment is mentioned in both the pretrial contentions of plaintiff and his theory of recovery." Id. Plaintiff does not set forth any evidence or argument regarding what adverse employment action he contends resulted from retaliation, the date of any such action, or the causal connection thereto. The Court will not sift through the record or make plaintiff's arguments for him. Defendant is entitled to summary judgment on this claim.
IT IS THEREFORE ORDERED that Defendant's Motion For Summary Judgment (Doc. #191) filed August 23, 2002 be and hereby is SUSTAINED in part. The Court sustains defendant's motion with respect to plaintiff's (1) Title VII and Section 1981 claims for failure to promote to materials manager; (2) Title VII and Section 1981 claims for failure to promote to the facilities supervisor position filled by Brian Knowles and Al Hubbard; (3) Title VII and Section 1981 claims for changes in physical location in the maintenance oiler job; (4) Title VII and Section 1981 claims for failure to grant shift change in the millwright position; (5) Title VII and Section 1981 claims for failure to promote to millwright A or millwright specialist; (6) Title VII claim for denial of overtime; (7) Section 1981 claim for denial of overtime from October 22, 1997 to July 25, 1998; (8) racial harassment; and (9) retaliation. The following claims remain in the case: (1) Title VII and Section 1981 claims for failure to promote to the facilities supervisor position filled by Carla Green; (2) Title VII and Section 1981 claims for failure to promote to millwright B and corresponding pay raise; and (3) Section 1981 claim for denial of overtime from July 26, 1998 to October 7, 1998.
IT IS FURTHER ORDERED that Defendant's Motion To Supplement The Exhibits To Its Memorandum In Support Of Its Motion For Summary Judgment (Doc. #217) filed November 5, 2002 be and hereby is SUSTAINED. IT IS FURTHER ORDERED that the Clerk fax a copy of this order to all attorneys of record.